Resistance to Change

While Bates was an admonishment to the Bars that widespread prohibitions on advertising could not be squared with the first amendment, it was not an unequivocal slapdown of the profession’s long disdain for advertising.

For starters, Bates was a narrow, 5-4 decision. Chief Justice Warren Burger, writing in dissent, made an articulate case for the unique nature of the profession and the perceived difficulties presented by lawyers engaging in price advertising. And the majority opinion itself noted that its decision should not be read as rolling back existing prohibitions on comparative or qualitative advertising by attorneys, or restrictions on many forms of direct solicitation of clients.

It’s unsurprising, then, that the bars didn’t react to Bates as a wholesale repudiation of their regulatory schemes. Instead of abandoning detailed ad regulation, most bars made begrudging concessions to lawyers’ first amendment rights while maintaining many of the historic restrictions on a wide variety of advertising techniques and practices.

Some of these rules – such as those limiting in-person solicitation, prohibiting runners and cappers, and barring the splitting of legal fees with non-lawyers – stem from factors unique to legal services. Many others, however, are picayune and bizarre: prohibitions on sound effects, evocative images, all manner of “selling point” advertising messages.

The upshot of having all of this residua still on the books is that bar regulators are often content to simply mechanically apply these pre-Bates rules.

What does it mean to “mechanically” apply the rules? In the case of legacy ad rules, it means to do so less as a lawyer or thoughtful regulator and more like a grocery clerk – to impose the rules without regard for the limitations imposed by the commercial speech doctrine, and without considering whether there is any meaningful benefit to the application of the rule.